The Press, the Courts and the Country

By Henry Grunwald

Are courts going too far in what is beginning to look like a campaign to curb the press?

Most journalists would not yet agree with Allen Neuharth, head of the Gannett newspaper chain, that in this respect, the Supreme Court has moved "above the law." But the trend is clear and alarming, from the denial of confidentiality of sources to surprise newsroom searches (see LAW). Not only the press is affected. The search decision can send the cops into psychiatrists' or lawyers' offices as well. The latest court ruling that pretrial hearings and possibly trials themselves may be closed to press and public is reprehensible, among other reasons because it could lead to collusion--behind closed courtroom doors--between judges, prosecutors and defendants. This ruling more than any other shows that the conflict is not just between the courts and the press but the courts and society.

Tension between power centers is useful in America. But the judiciary ought to reflect about what it is doing. In important respects, judges really are in the same boat as journalists, and ultimately in the service of the same ideals. People who cheer the courts' moves against the press are quite ready to condemn the courts in other areas. If the press is seen as having too much power, so are the courts, and then some.

The monstrous regiment of lawyers has rarely been more resented. In a recent Harris poll about public confidence in various institutions, law firms ranked eleventh on a list of 13. Even when lawyers are miraculously transformed into judges, they do not regain total trust. In the same poll, the Supreme Court came in sixth, while TV news (somewhat surprisingly) ranked first and the press in general ranked fifth, thus nosing ahead of the august court.

Distrust of the judiciary is nothing new in American history. Thomas Jefferson in 1820 thought that the notion of judges as "the ultimate arbiters of all constitutional questions" was "very dangerous" and threatened the "despotism of an oligarchy." At times, the press helped fan suspicion of judges; more recently it has functioned as an ally of the bench, as when the courts virtually administered school desegregation, and during Watergate.

Some historical perspective is necessary. The proud judiciary traces its origins back far beyond the beginning of the printed word to times when the judge was king, and vice versa. Journalists, on the other hand, are relative newcomers, the spiritual descendants of itinerant printers, scribblers and (let's face it) rebels. Indeed, one of the reasons that journalists are so worried, even perhaps slightly paranoid, about the loss of their freedoms is that these rights have never been very secure, here or abroad.

In 16th century England, editors and "newswriters" were constantly in danger of imprisonment or torture, even of beheading, hanging and burning at the stake, sometimes for refusal to reveal the source of confidential information. Until nearly the end of the 18th century, libel in Britain was readily used to jail journalists and others. John Walter, publisher of the young London Times, was confined for nearly a year and a half to Newgate Prison, from which he managed to run his newspaper.

Journalists fared somewhat better in America. Here, the press played an essential part in bringing off the American Revolution. But that did not assure popularity. George Washington came to believe that the press should be firmly "managed" and kept in its place. Jefferson, kinder to the press than to the courts, disagreed and declared grandiosely that "nature has given to man no other means [than the press] of sifting out the truth either in religion, law, or politics." (In fairness, it should be noted that later he declared himself "infinitely happier" once he had stopped all his newspaper subscriptions.)

Still, journalism in America was a high-risk trade. Editors were always in danger of being challenged to duels or horsewhipped or beaten up by gangs. During the War of 1812, one antiwar newspaper was actually blasted by a mob with a cannon. On the frontier, tarring and feathering editors was a popular pastime. Symbolically, of course, it still is. The press, its reach almost infinitely expanded by electronics, has come a long way since those days. Yet, the public, despite its daily if not hourly intimacy with the press, does not really understand it very well. That lack of understanding is reflected in the courts, although it goes far beyond matters of the law. In part, this is inevitable because the press is indeed a peculiar institution, full of paradoxes. To understand and judge --even to criticize it for the right reasons--a few broad points might be kept in mind.

> The American press is better than ever. Yellow journalism persists, but largely on the fringes of the press and is pale compared with what it was in the heyday of William RandolphHearst. One episode: Drumming the U.S. to war against Spain, Hearst sent " Artist Frederic Remington to Cuba. When Remington cabled that all was quiet, with no war in sight, Hearst fired back: "You supply the pictures, I'll supply the war." Arrogance of such magnitude is unheard of today. The sensationalist Joseph Pulitzer declared that accuracy is to a newspaper what virtue is to a lady, but the fact is that journalism today takes that maxim far more seriously than did the papers of Pulitzer's time.

True, the press still features triviality, gossip, scandal. It always will. Charles Anderson Dana of the New York Sun--like Hearst and Pulitzer quite a phrasemaker and an exemplar of the era--declared that the Sun could not be blamed for reporting what God had permitted to happen. That was only partly a copout. While the press should not pander to base or grisly appetites, or merely "give the people what they want," neither should it be expected to change human nature (if that concept is still admissible). America's mainstream publications today, for all their faults, are far more broad-gauged, responsible, accurate--and self-critical--than ever before, or than any other in the world.

> The press should not be expected to be what it is not. Literary critics chide journalism for not being literary enough, historians for lacking historical accuracy, lawyers for not marshaling facts by the rules of evidence. But journalism is not literature, not history, not law. Most of the time it cannot possibly offer anything but a fleeting record of events compiled in great haste. Many news stories are, at bottom, hypotheses about what happened. Science, of course, works by hypotheses, discarding them when errors are discovered, and it does so, on the whole, without blame, even when a mistake costs lives. The press, which lays no claim to scientific accuracy, is not easily forgiven its errors. Admittedly, the press often rushes into print with insufficient information, responding to (and perhaps creating) an occasionally mindless hunger for news. A utopian society might demand that the press print nothing until it had reached absolute certainty. But such a society, while waiting for some ultimate version of events, would be so rife with rumor, alarm and lies that the errors of our journalism would by comparison seem models of truth.

The press was not invented by and for journalists. It is a result of mass literacy and the instrument of a political system in which, for better or worse, all literate people--indeed even the illiterate--are considered qualified voters. So the hunger for news is a hunger for power--not power by journalists, as is often suggested, but by the public. The press is a child of the Enlightenment and those who inveigh against it also attack, sometimes unconsciously, the values of the Enlightenment. It is no accident that the press grew as the concept of revealed truth declined. The press as we know it could not (does not) exist in societies that in all things accept the voice of authority.

> Profits should not make the press suspect. Many people (including journalists and judges) are troubled by the fact that the press performs a public service and yet makes profits. But this is nothing the press should apologize for; on the contrary. The press as a business is the only alternative to a subsidized press, which by every conceivable measurement would be worse. True, there are serious risks in the commercial aspects of the press, but these are relatively minor compared with the situation a few generations ago, when weak and insecure newspapers all too easily succumbed to the checkbooks of political or business pressure groups. Henry Luce argued that the press was not really taken seriously and, in a sense, did not really become free until it became a big business. Enterprising journalism is expensive. (It costs more than $100,000 to keep a correspondent in Washington, D.C., for one year. Paper, printing and distribution cost TIME magazine $120 million. The newspaper industry spends $3 billion each year on newsprint alone.)

Questions about profits lead to questions about size. The spread of newspaper chains and one-newspaper cities is, to be sure, a cause for concern. Yet smallness as such is not necessarily good: it guarantees neither quality nor independence. Bigness as such is not necessarily bad: in most cases, large resources improve a publication. Nor does the size of some enterprises keep new publications out. The number of small publications is growing and their diversity is dazzling. The really remarkable phenomenon of recent years is not so much the growth of communications companies, but the spread of highly organized special interest groups that have had considerable success in making themselves heard and seen.

> The press is not too powerful; if anything, it is not powerful enough. Those who want to curb the press point out that it is no longer the "fragile" thing it was when the First Amendment was written. But neither is the Government. When Franklin Roosevelt took office, the federal budget, in 1979 dollars, amounted to about $38 billion. In fiscal 1980, it will be around $530 billion. When Roosevelt took office, the federal bureaucracy consisted of 600,000 people. Today it adds up to 2,858,344. Such figures can only suggest that the growth of Government has been far more dramatic than the growth of the press that attempts to cover and monitor it. With innumerable Xerox machines and printing presses, through tons of publications, reports, tapes and films, countless Government flacks churn out enough information, and disinformation, to overwhelm an army of reporters. To a lesser extent this is true of other large institutions: corporations, unions, foundations, all of which try to manage the news and use the press for their ends.

The fact that the press is not accountable to any other power except the marketplace clearly agitates a lot of people. This often takes the form of the hostile question to editors: Who elected you anyway? But some institutions in our society simply should not be subject to the usual political processes. As for the courts, whatever their intentions may be, they are not the place to cure the undeniable failings of the press.

Do recent court actions really make much of a difference to journalists in practice? Many judges doubt it, but let them try an experiment and take on a tough reporting assignment. Let them try to get complicated and controversial information from resisting sources and amid conflicting claims -- without the judicial power to subpoena documents or witnesses -- and have to testify under the disciplines of contempt or perjury. Let these judges then see how far they will get with their assignment if they are unable to promise an informant, who may be risking his job, assured confidentiality, or if they are hit by subpoenas, now said to be running at the rate of 100-plus a year, many of these mere "fishing expeditions."

To say this is not to claim an absolute privilege for journalists. Newsmen should not ask the same standing that a lawyer or doctor has in dealing with clients or patients; lawyers and doctors after all are licensed, which is precisely what journalists will not and must not be. Obviously the American journalist enjoys unusual latitude and he must, therefore, bear unusual responsibility. He must expect a certain rough-and-tumble in his trade, and not wrap himself in the Constitution at every setback. By no means were all recent court rulings unmitigated disasters. The court in effect allows the press to print anything it can get its hands on. When the Supreme Court held that a newsman's state of mind and his preparations for a story were legitimate subjects of inquiry, this evoked visions of thought police; and yet it was only a consequence of an earlier pro-press ruling that a public figure, in order to be able to sue for libel, must prove "actual" malice and gross neglect on the part of the journalist. Most newsmen do not demand confidentiality of sources automatically, but only when naming sources or delivering notes is not strictly necessary to meet the specific needs of a defendant. (Many judges in fact agree with this view.)

No serious journalist questions the need to balance the rights of a free press against other rights in society, including the rights of defendants. But the degree of balance is what counts, and the balance is tilting against the press. As a result, a backlash against the courts has begun in Congress, with the introduction of many bills designed to shore up the rights of journalists. That is a mixed blessing. Spelling out rights that were assumed to exist under the general protection of the First Amendment may very well result in limiting those rights. Most of the press would much rather not run to Congress for protection against the courts. Yet if the courts continue on their present course, journalists will have little alternative.

Perhaps it is not too late for judges to restore some balance and to discover that they do share with the press certain common interests, if not a common fate. As New York's Irving R. Kaufman, Chief Judge of the Second Judicial Circuit, has written: "Different as the press and the federal judiciary are, they share one distinctive characteristic: both sustain democracy, not because they are responsible to any branch of Government, but precisely because, except in the most extreme cases, they are not accountable at all. Thus they are able to check the irresponsibility of those in power ..."

Ultimately the question of freedom of the press comes down to the question of freedom, period. Freedom exists both for good and bad, for the responsible and the irresponsible. Freedom only for the good, only for the right, would not be free dom at all. Freedom that hurts no one is impossible and a free press will sometimes hurt. That fact must be balanced against the larger fact that this freedom does not exist for the benefit of the press but for the benefit of all. In the majority of countries, judges are in effect only executioners and journalists are only Government press agents. This reality should be kept in mind as the courts deal with the American press and its rare and fragile rights.

-- Henry Grunwald

This essay is based on an address delivered recently to the annual conference of the Second Judicial Circuit in Black Hill Falls,Pa.

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